Sanderson v. State

• Decision Date: 29 February 1928
• Docket Number: (No. 10756.)
• Citation: 3 S.W.2d 453
• Parties: SANDERSON v. STATE.
• Court: Texas Court of Criminal Appeals

3 S.W.2d 453

SANDERSON v. STATE.

(No. 10756.)

Court of Criminal Appeals of Texas.

February 29, 1928.

Commissioners' Decision.

Appeal from District Court, Coleman County; J. O. Woodward, Judge.

D. F. Sanderson, Jr., was convicted of murder, and he appeals. Reversed and remanded.

Critz & Woodward, of Coleman, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

MARTIN, J.

Appellant killed his father. He is the eldest of three children and was 18 years old at the time of the tragedy. He claims to have killed in defense of himself and his mother. The mother of appellant had on the day of the tragedy filed suit for divorce against deceased. The evidence indicates that prior to this time she had had a very unhappy married life, due to the drunken habits of the deceased. He had, according to her testimony, manufactured intoxicants in the home and when under their influence had made many brutal assaults upon her. On the day of the homicide, returning to the home after citation in the divorce suit had been served upon him, he again assaulted his wife and appellant's mother, bruising her, and cutting a gash over her eye, and bloodying her face. Appellant had many times intervened to protect his mother, and on this occasion his little brother came for him, and he returned from his work to her home, observing at that time the effects of the brutal assault which had just been made upon her by his father. In a little while the deceased returned to the house, and again began drinking, and, according to the testimony of the family, threatened to kill both appellant and his mother, and was about to assault them with a bottle when appellant shot and killed deceased. Officers and witnesses, arriving immediately after the homicide, observed the bruised and bloody face of appellant's mother and found near the body of deceased in a nearby sink a bottle of beer, partly empty. There was taken from the house by the sheriff of the county at this time 155 full bottles of beer. After the killing appellant immediately started towards town and, meeting Berry Bishop, the constable, stated to him, "I have killed Dad." He was taken into custody and to the courthouse, a short distance away, where he continued in a highly nervous and excited condition; was crying and shaking, as one witness described, "like a dog that had been poisoned." This witness further said he was then not in condition to talk. He was in such a condition that the constable went for a physician and upon his return 30 or 40 minutes later the appellant made a further statement to the witness Bishop, which was excluded by the court and is made the subject of appellant's bill of exception No. 1.

The witness, Bishop, had been placed upon the stand by the state and the statement of appellant proved against him, above quoted. On cross-examination, the appellant offered to prove that upon the return of state's witness, Bishop, to the courthouse the appellant stated to him:

"My little brother, Jack, came to the garage just a little while before I killed Dad and told me Dad was killing Mother. I went home as fast as I could, and Dad had left. I saw my mother's face bleeding. I saw a cut over her eye, and she told me Dad had knocked her down two or three times in the hall and had threatened to kill her before night. Mother and I went over to my uncle's house, but they were not at home. When we came back to the house, Dad was drinking a bottle of beer and he was mad, and I saw from the look on his face that he was going to do something. He reached over into the kitchen sink and picked up something, I think it was a beer bottle, and said, `G____ d____ you, I will kill you both,' and I know he meant what he said, and I thought he was going to do something, and I thought he was going to kill me and my mother both, and I shot."

The facts and circumstances recited in the bill, we think, show that this was but a continuation of the former conversation had between witness, Bishop, and the appellant. It was at least explanatory thereof.

Article 728, C. C. P. 1925, reads as follows:

"When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence."

This statute is an enlargement of the common-law rule which limited such proof to what was said at the time of making a confession or admission.

In the case of Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138, Justice Ramsey, speaking for the court, fully analyzes the authorities on this subject and in his usual clear and terse style announced the following rule:

"The true criterion and test for determining the admissibility of such statements is: Are they necessary to make any other act or declaration of a defendant, which has been proved by the prosecution fully understood, or do they explain same? Wood v. State, 28 Tex. App. 61 . We think this is the true criterion and the true test, and that measured by this test as applied to this case, the proposed testimony was admissible. The declarations and statements of appellant offered in evidence by the state went to the extent only that they would find Lide dead, and that he had shot him. In this testimony so introduced by the state there was an unequivocal admission that he had killed Lide, without explanation or undertaking to account for the circumstances under which the killing was done. In the conversation and statement sought to be proved, appellant undertook to give and did give the explanation, reasons, grounds and circumstances of the killing. This testimony was explanatory of the killing and contained appellant's justification for the homicide."

Measured by this rule and the above article of the statute, we think the proffered testimony admissible and its exclusion error. This evidence was also admissible, we think, as res gestæ.

Complaint is made of the cross-examination...